The Courts view on conduct of the parties for the purpose of Financial Proceedings

March 29, 2017By BPS Family LawBlog

Generally speaking, a parties’ conduct is not usually taken into account when the Court’s are considering how the matrimonial assets should be distributed between the parties.

The Courts are aware of the fact that matrimonial finance proceedings can be extremely stressful for both parties. There are worries for both parties as to where they will now live, how they will be rehoused, and whether there will be enough money awarded to them for them to be able to begin again. The Courts therefore expect an ‘ordinary run of fighting and quarrelling which occurs in an unhappy marriage’ and therefore they do not take this conduct into account as this would undermine any contribution that a party has made towards the marriage.

However, there have been occasions within certain matrimonial finance cases where the Court has deemed it ‘inequitable to disregard’ a parties behavior, and thus the offending party has received less than they were entitled to than if the conduct had not been carried out. The conduct in question need not have taken place during the marriage.

In S v S 1982 12 Fam Law 14 The Husband has committed incestuous offence with the parties daughters. As his behavior contributed towards the breakdown of the marriage, the Former Matrimonial Home was transferred into the Wife’s sole name.

In another case, H v H (Financial Relief: Attempted Murder as conduct) 2005, a Husband had subjected the Wife to a horrifying ordeal whereby he attempted to kill her. This attack was witnessed by the parties two children. Given the fact that the Husband was going to serve time in prison and therefore be unable to contribute financially whilst incarcerated, and that Wife’s earning capacity was completely destroyed as a result of her suffering both mentally and physically as a result of the attack, the Court thought it reasonable to award the wife three times more of the matrimonial assets.

In Al Khahib v Masry 2002 The Husband abducted the children to Saudi Arabia and refused to reveal the true value of his assets. The Court deemed his behavior in relation to the children to amount to conduct which was ‘inequitable to disregard’.

In S v S (Non Matrimonial Property: Conduct) 2006 the court did not award a settlement in favour of the Wife who had been assaulted by Husband. The Courts were reluctant to offer any guidance as to when it is deemed appropriate to reduce a parties award. Conduct of the parties is merely one aspect of Section 25 principles when determining how matrimonial assets should be divided, and for conduct to be taken into account, it appears from the above case law that it must be of severe magnitude in order for the Courts to intervene. Sir George Baker P suggested a test of ‘the gasp factor’ in W v W 1976.

If you need advice in relation to matrimonial finance proceedings, please contact us.

Lasting Power of Attorney – What is it and how is it obtained?

March 27, 2017By BPS Family Law123, Blog, Case Studies

A lasting power of attorney ( LPA ) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

This guidance applies to the donor instructing an attorney in their professional or business capacity rather than a family member or friend.

There are a number of reasons why you may need to appoint someone to make decisions on your behalf. You may need to make long term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.

Individual or trust corporation appointment?

We will ensure the donor understands whether they are choosing to appoint an individual or a trust corporation. If an individual, then the professional’s responsibility will still apply even if the professional leave their post or profession until they disclaim their appointment.

Appointments made jointly or jointly and severally

You must decide whether to appoint the professional jointly, or jointly and severally. An agreement must be made with any co-attorneys so that the donor’s affairs are managed properly. This will be dealt with in advanced by the our firm.

 Certificate 

A certificate will confirms when the donor creates the LPA, that donor fully understands what they are doing and have not been coerced into making the LPA.

 

Acting in the donor’s best interests

Our firm will ensure under the Mental Capacity Act 2005 that any actions taken or decisions made on behalf of the donor lacking mental capacity is in that person’s best interest.

The firm will ensure that they take into account the donors past and present wishes and feelings, and any beliefs or values. A record of any discussions will be held on the donor’s behalf so that the donor is reassured that the firm will act as they want if the donor does not have capacity. If the donor loses capacity and is no longer able to express their preferences it will be crucial for the professional to talk to relatives and carers to ensure there wishes and feelings are met.

After the LPA is created

Once the donor is created the donor must discuss what they would like to happen once they have created the LPA. It is recommended by the Public Guardian that the donor must register the LPA as soon as it has been created while they still have capacity.

If you’d like to find out more about the lasting power or attorney and how to set one up then you can get in touch with Caroline at [email protected] or by telephone 01619261430

Co-Habitation and its Pitfalls

February 10, 2017By BPS Family LawBlog

Living together with your partner is often seen as an alternative to marriage or as a temporary arrangement.

Many couples believe that moving in with your partner creates a common law marriage, giving you the same rights as if you were married- It does not.

It is crucial to understand your legal rights and responsibilities. You may see this as being committed to each other as a married couple however the law doesn’t view it in that way.

Under martial law the courts have to take all the circumstances and history of the relationship into account and decide on a fair division. Cohabiting couples do not have an automatic right to benefit from each other’s retirement plans, or to inherit from each others property regardless of the number of years they have been together. If you both decide to have a child together there are no automatic parental rights. The property that you buy together isn’t automatically divided equally if you decide the relationship isn’t for you.

Perhaps it’s easier to walk away from an unmarried partnership however you don’t have the protections that are built into the divorce process. By the time people realise this, it is often too late- the relationship has broken down or a partner has passed and it is only then they realise they do not have any legal protection.

When cohabiting relationships break down there is very little protection. As a result, some cohabiting families can find themselves facing real difficulties should they split up, particularly when children are involved.

If you’d like to find out more information about the legal issues for cohabiting couples and the options available to you then you can get in touch with Caroline at [email protected] or by telephone 0161 926 1430.

What happens if a spouse hides matrimonial assets?

January 27, 2017By BPS Family LawBlog

Within matrimonial finance proceedings, it is standard procedure for both parties to disclose their assets before an informed agreement can be reached as to how the ‘matrimonial pot’ should be divided.

If one party attempts to mislead the Court as to the true value of their assets this can lead to an unfair outcome for their spouse and, if appropriate, their children.

In 2015, Judge Mark Rogers awarded an ex wife a further 2.7 million after it was found that the ex husband had misled the court when disclosing his wealth in relation to a business which was in fact worth millions. The wife had previously agreed to receive £ 150,000 to discharge the mortgage on the family home which was valued at £700,000 in addition to £10,000 a year salary and child maintenance payments.

The Judge stated that the husband had been so dishonest in relation to the disclosure of his assets that the wife was therefore unable to give informed consent in relation to the previous deal ten years earlier.

If you believe your ex-spouse concealed assets during your divorce then we can help you.   Contact us on 0161 926 1430.

Child Contact for Violent Fathers

January 26, 2017By BPS Family LawBlog

What is domestic abuse?

Domestic violence is the abuse of one partner within an intimate or family relationship. It is the repeated, random and habitual use of intimidation to control a partner. The abuse can be physical, emotional, psychological, financial or sexual.

The Court’s approach to child contact for violent fathers.

 The Charity Women’s Aid campaigned due to statistics which identified that ’19 children have been killed in the last 10 years by their violent fathers after being given contact with them by judges.’

Reforms are being introduced into the Family Courts.

The Reforms aim to end the belief that a father has the right to engage in contact with a child when there is evidence of domestic abuse.

It is taken very seriously by Senior Judges to take steps in order to avoid contact with violent fathers that would ultimately put the child or mother at a high risk of harm.

The changes contain a demand for all the judiciary to have further training on domestic violence and to act to safeguard women and children.

Mr Justice Cobb announced the changes and stated ‘It is indeed most disturbing to note that for at least 12 children [in seven families]; of the 19 children killed … contact with the perpetrator [the father] was arranged through the family courts’.

Judges need to be more alert to perpetrators of domestic violence using the courts as a way to continue their abuse.

At BPS Family Law we work closely with families who have suffered domestic violence. We offer practical advice along with a compassionate approach. We achieve the best possible outcome for families.

If you’re looking for a lawyer to help you with any of the issues mentioned above, then you can get in touch with Caroline Swain by email [email protected] or by telephone on 0161 926 1430

Karen Jones, Solicitor considers Arbitration and whether this will become the new norm in resolving conflicts in Family Law

January 23, 2017By BPS Family LawBlog

What is Arbitration?

Arbitration is where an independent adjudicator is appointed to settle a dispute.  In order for Arbitration to be utilised, both parties must consent to enter into the process and to provide their written agreement to be bound by the decision reached by the Arbitrator.  Arbitration is therefore different to meditation or collaborative approaches to dispute resolution.

What are the benefits?

The decision of the independent arbitrator is binding.

Arbitration may now be used to determine financial settlements and also issues relating to children.

It is a useful mechanism, potentially in TOLATA disputes as the parties can decide not to be bound by the tricky CPR provisions which family practitioners can be uncomfortable with, but instead opt to utilise the more familiar FPR.  If Arbitration is being used in a TOLATA dispute a final order is not required, however in family disputes a final order must be obtained in order to achieve a clean break.  The process therefore has a degree of flexibility but the law of England and Wales must be applied to any dispute and of course the jurisdiction of the family court cannot be ousted.  Parties need not worry however that their settlement is unlikely to be endorsed by the courts, with the decision of an Arbitrator typically treated in the same manner as a Consent Orders.

Should one party to seek to resile from the decision of an Arbitrator – this will not be looked upon favourably by the courts as; the parties have entered into Arbitration voluntarily with a view to being bound by the outcome.  It is possible for both parties to agree to exit the process and revert to the family court; however one party cannot do so unilaterally.

The Arbitrator can however draw adverse inferences where one party has failed to comply with their duty of disclosure.  The Arbitrator can also proceed in the absence of one party from which adverse inferences can be drawn.

One major advantage to the process is the speed with which it can be affected.  Typically disputes can be resolved within 6 – 8 weeks which is much quicker than the usual court process for resolving disputes.

Only one Arbitrator will be appointed throughout the process thus giving continuity to the proceedings.  It is the level of choice which allows the parties to determine the necessary level of expertise required.  As the Arbitrator will have been selected by the parties and are being privately paid, (typically for a fixed fee thus giving a level of financial security to the parties), the parties can be assured that the Arbitrator will have read the papers and be fully up to speed with the issues in dispute.

Another major advantage is that the process is completely confidential and therefore is likely to appeal to high profile people.  That is not to say it cannot be utilised for lesser value cases given the level of flexibility and speed with which cases can be determined.  An Arbitrator can be selected to deal with a discreet point only; this can be particularly useful in children’s disputes, where for example, the parties cannot decide which school a child should attend.  A decision will be made and given on the day.  Likewise an Arbitrator can give a decision in writing, thus avoiding the parties coming together face-to-face.

Are there any drawbacks?

One difference to the family court is that it is not possible to compel 3rd parties to become involved in the dispute.

It is also not possible for a party to be held in contempt or committal proceedings instigated.

Is Arbitration it right for you?

This is still a relatively new form of dispute resolution and it therefore difficult to predict how effective or popular the scheme will prove to be.  It therefore remains to be seen whether Arbitration will become the new norm for resolving financial and children disputes – particularly in children matters where the scheme has only been up and running since July 2016.  The problems within the courts are well documented and experienced by family practitioners on a daily basis.  It may be the case that parties come to regard this private forum as their best choice to resolving their disputes quickly and in arguably, a more cost effective manner.

If you would like to consider Arbitration as a means to resolving your dispute with your partner, BPS Family Law can assist.  Please get in touch with Karen at [email protected] or by telephone on 0161 926 1430.

 

 

Non Matrimonial Assets – What are they and how will they be treated within financial separation?

January 19, 2017By BPS Family LawBlog

How do you know what will be considered your property or joint property when you go through the process of divorce?

Do you own property which you believe your spouse should not be entitled to when you separate?

The lack of legal definition of ‘non-matrimonial’ property is an issue in many financial remedy cases and this has led to two groups of case law on the issue in recent years.

In a historical case the Court took a ‘scientific’ approach. It said that the court ‘must first identify the whole matrimonial pot, and within that how much constitutes both matrimonial and non-matrimonial assets’. The scale of the non-matrimonial property to be excluded is then identified, leaving just the matrimonial property to be divided according to the equal sharing principle. Therefore, the court looked at all assets but then having looked at them considered which of those assets it could remove as being non-matrimonial and away from the hands of the other spouse.

In a more recent case the Court instead favoured the ‘artistic’ approach, which took a more discretionary broad brush approach. If there is property which is not a result of the marriage the whole matrimonial pot is adjusted from the 50:50 starting point and an appropriate percentage shift is taken to reflect the existence of non-matrimonial property in that case. The potential problem with this approach is that the outcome of a case depends on the discretionary intuitive feel of your Judge and creates a risk of inconsistency.

The above highlights the risk that families can face when asking the Court to deal with matrimonial and non-matrimonial assets. It is ever the more essential that you instruct a knowledgeable lawyers who is specialist in the field of matrimonial finance law. We are on hand to assist you. Contact 0161 926 1430 or [email protected]

We have offices in Manchester City Centre, Hale Cheshire and Stockton Heath, Warrington.

Dealing with Adult Children During Divorce

September 27, 2016By BPS Family LawBlog

A common misconception that adult children of divorce are invariably less affected by their parents’ separation than young children is an oft-cited argument. Indeed, it is not uncommon to hear parting couples intuit that young adults will suffer less in their adjustment than they would have as children. However, with the number of over-50s or “Silver Splitters” choosing to end their marriages reaching a 40-year high, what is becoming more and more apparent is that a divorce’s affect on adult children is frequently underestimated.

There is clear-cut advice for dealing with young children during a divorce. On the other hand however, when the “child” is an adult, these rules often go out of the window. Adult children are frequently just as reluctant to get involved in the divorce between their parents as young children are. Too often, though, their divorcing parents reach out to them and sometimes pull them without any choice into the fray. If divorce occurs when your children are older, there are many ways to avoid this and to create and maintain positive and healthy relationships. Here are four key tips:

Be patient

In the wake of their parents’ divorce, many adult children are forced to see their childhood home be sold and disappear at the same time that they are going through intense changes in their own lives. Some adult children may have had no idea that there were issues between their parents and, like their parents, adult children need time to adjust and move on. While you should acknowledge their pain and even perhaps their disappointment, you shouldn’t try and fix it. Your adult children do not need to understand everything all at once, just be there for them when they have had enough time for their own reflection.

Be careful when sharing information
Even though they may be adults, remember that your children are just that: your children. It may be acceptable to share some information with them, but other information they will not want or need to hear. You are entitled to your own privacy during divorce and children don’t need to know every detail of your marital problems just because they are ‘grown up’. Be mindful of boundaries when speaking to your adult children about the circumstances surrounding your divorce.

Don’t speak badly about your children’s other parent
As angry or upset as you may be at your spouse, it is unfair to pull your adult children into arguments that may sabotage or even critically wound their relationship with their other parent. Even if they are grown up, it is still their mum or dad that you are talking about. Your children’s choices are their own, but do not try to make up their minds for them. Think about if you would share the same information if they were younger.

Don’t lean only on your children for support
It is not uncommon for people going through divorce to instinctively turn to their adult children for both emotional support and advice on what to do next. Although your children know you well and will most likely want what is the best for you, it is important to not only just rely on them, but also to seek objective and informed advice. Your adult children will not know everything about the circumstances of your separation, nor should they. Moreover, they are trying to cope with your divorce themselves. Continue to play your role as their parent while reassuring them that you do respect their opinions and are always open to conversation should they wish to discuss your divorce.

Can you afford the risks of a “Quickie Divorce”?

September 14, 2016By BPS Family LawBlog

Caroline Swain, Partner at BPS Law and specialist in Matrimonial and Family law, has worked on many high profile and ultra-net worth financial disputes giving her the reputation of one of the most sought-after divorce lawyers in the UK.

Divorce is common. In 2011, it was estimated that 42% of marriages ended in divorce in England and Wales. It is therefore unsurprising that many look for a quicker and cheaper alternative than hiring divorce lawyers.

The term ‘quickie divorce’ is often used, suggesting that a couple have achieved a divorce without going through the usual and often slow process of us safety conscious lawyers.

Celebrities have been quick to hail the ‘quickie divorce.’ For example, after announcing their separation in February 2016, papers claimed that the marriage of Millie Mackintosh and Professor Green ended after a quickie divorce hearing that lasted just thirty seconds.

Gary Linker and ex-wife Danielle Bux were also said to have finalised their settlement for just £400 through a ‘DIY’ divorce process.

Whilst many wish to still hire a solicitor, those who believe they can resolve their divorce amicably choose this ‘DIY’ route. Such ‘DIY’ divorces can supposedly be done online and for as little as £37.

However, these adverts may be falsely luring the general public into thinking that financial separation can be achieved quickly and without the benefit of legal advice. This could be disastrous for many and inherent with risks of both long and short term dire consequences.

Firstly, there are several hidden costs to these DIY divorces.

Filing a divorce petition costs £550 in England and Wales. This payment is compulsory as court fees apply to every divorce case. Online divorce sites often fail to advertise this compulsory payment which must be paid whether you carry out the process online or with the assistance of a legal team.

Most couples also need a consent order. This documents sets out how property, capital, business interests, income, debts, pensions will be divided. The consent order ensures ex-spouses cannot make claims against each other in the future, something that we cannot stress enough to our clients as being essential before obtaining Decree Absolute. The Court fee for filing this Order is £50.

The wording of the Consent Order is paramount, it must deal with all claims and future claims. Most individuals will employ solicitors to draft these documents as it makes the process more straightforward. The financial claim one spouse has against the other is complicated, and if the advice is insufficient future problems can arise regarding pensions, property or maintenance.

Moreover, the use of mediators has become increasingly popular in order to keep down costs and speed up the process. Solicitors may advise mediation in order to resolve issues that are inhibiting the divorce from proceeding and achieving financial settlement.

Mediation involves assessment of these key issues. It does come with a financial cost, but can help keep costs down in the long run.

However, mediation does not always work. If spouses are unable to resolve issues amicably, additional legal costs can occur. Parties may need to go to court and in doing so they may have to pay additional costs.

Furthermore, in terms of being granted a divorce quickly, one cannot be granted immediately. After a divorce petition has been filed, and a decree nisi has been pronounced, any couple must wait at least six weeks before applying for a decree absolute. The decree absolute is the official document confirming that the marriage has ended.

The six weeks that stand between the decree nisi and the decree absolute are rarely abridged. An individual must have exceptional circumstances for this to be possible.

The ‘quickie divorces’ we see advertised online or in the paper are therefore processed no quicker than any other divorce. However, both parties may have worked efficiently and amicably in order for the divorce to be finalised quickly.

Whilst costs may increase once solicitors are employed, they can remain fairly low if both parties remain civil throughout proceedings.

Man wins the right to buy home he shared with his partner

September 9, 2016By BPS Family LawBlog

A 91-year-old man has been granted the right to buy the home he shared with his partner because her will had not made reasonable provision for him.

The court heard that the man had lived in the home with his partner for 20 years. She had made a will leaving all her estate to her daughter and nothing to him.

After she died, her daughter began legal proceedings to gain possession of the house.

The man said that he and his partner had expected him to die first and so she had not included him in her will. He accepted there was never any understanding that he would have an interest in his partner’s estate.

He had the means to buy a house if necessary but he wished to remain in the home where he had lived with his partner because he was in poor health and was assisted by his neighbours.

The recorder concluded that he should be given the option to purchase the house from the estate for £385,000. That figure was based on a valuation of the property obtained by the daughter. A joint expert had concluded that the property was worth £340,000.

The High Court has upheld the decision. It held that the recorder had been entitled to conclude that the woman’s will did not make reasonable provision for her long-term elderly partner because it did not allow him to remain in their home.

Please contact us about the issues raised in this article or any matter relating to wills and probate